V1.6 LAST UPDATED: May 10, 2019
READ THESE TERMS CAREFULLY BEFORE BROWSING THIS WEBSITE OR USING ANY SERVICES. USING THE SITE IN ANY WAY INDICATES THAT YOU HAVE BOTH READ AND ACCEPT THESE TERMS. YOU CANNOT USE THIS SITE OR ANY PART OF THE SITE IF YOU DO NOT ACCEPT THESE TERMS.
THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH THE COMPANY. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.
PROFESSIONAL ADVICE AND MEDICAL DISCLAIMER:
PLEASE NOTE: THE INFORMATION AND MATERIALS POSTED ON AND ACCESSIBLE THROUGH THE SITE ARE FOR INFORMATIONAL PURPOSES ONLY AND ARE NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT, OR PROFESSIONAL FINANCIAL OR INVESTMENT ADVICE. BURNALONG DOES NOT RECOMMEND OR ENDORSE ANY SPECIFIC PRODUCTS, PROCEDURE, OPINIONS, OR OTHER INFORMATION THAT MAY BE MENTIONED ON THE SITE OR ON MATERIALS OBTAINED FROM THE SITE. RELIANCE ON ANY INFORMATION PROVIDED BY BURNALONG, CONTRIBUTORS TO THE SITE, OR OTHER USERS OF THE SITE IS SOLELY AT YOUR OWN RISK.
YOU SHOULD CONSULT YOUR PHYSICIAN OR OTHER HEALTH CARE PRACTITIONER BEFORE STARTING ANY EXERCISE PROGRAM. THIS IS PARTICULARLY TRUE IF YOU OR YOUR FAMILY HAVE A HISTORY OF HIGH BLOOD PRESSURE OR HEART DISEASE, OR IF YOU HAVE EVER EXPERIENCED DISCOMFORT WHILE EXERCISING. DO NOT USE BURNALONG IF YOU ARE PREGNANT UNLESS YOU HAVE RECEIVED PERMISSION FROM YOUR PHYSICIAN. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ ON THE SITE!
We may alter the Materials and Services we offer and/or we may choose to modify, suspend or discontinue any part of the Site at any time and without notifying you. We may also change, update, add or remove provisions (collectively, “modifications”) of these Terms from time to time. Because everyone benefits from clarity, we promise to inform you of any modifications to these Terms by posting them on this website and, if you have registered for an account with us (as described more fully below), by describing the modifications to these Terms in an email that we will send to the address that you provided during registration. To be sure we properly reach your email inbox, we just ask that you let us know if your preferred email address changes at any time after your registration.
If you object to any such modifications, your sole recourse shall be to cease using the Site. Continued use of any part of the Site following notice of any such modifications indicates you acknowledge and agree to be bound by the modifications. Also, please know that these Terms may be superseded by expressly-designated legal notices or terms located on particular pages of this Site or associated with specific Services. These expressly-designated legal notices or terms are incorporated into these Terms and supersede the provision(s) of these Terms that are designated as being superseded.
We invite you to use this Site for individual, consumer purposes (“Permitted Purposes”). By using the Site, you agree that you are at least 13 years of age. If you are older than 13, but younger than 18 (a “Minor”), you must have the consent of your parent or legal guardian and receive your parent’s or legal guardian’s permission to use the Site and agree to these Terms. If you are a parent or legal guardian of a Minor, you agree to be present while the minor uses the Site and bind the Minor to these Terms and to fully indemnify and hold us harmless if the Minor breaches any of these Terms.
Notice to parents and guardians: You are solely responsible for monitoring and supervising your Minor’s use of BurnAlong. If they are using BurnAlong without your express consent, please contact us immediately so we can disable their access.
In these Terms we are granting you a limited, personal, non-exclusive, revocable and non-transferable license to use and to display the Materials; your right to use the Materials is conditioned on your compliance with these Terms (including the payment of any applicable fees). You have no other rights in this this Site or any part thereof and you may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of this website, Materials or Services in any manner. If you make copies of any part of the Site while engaging in Permitted Purposes then we ask that you be sure to keep on the copies all of our copyright and other proprietary notices as they appear on the Site. You may only use such copies in connection with your use of the Site.
Unfortunately, if you breach any of these Terms the above license will terminate automatically and you must immediately destroy any downloaded or printed Materials (and any copies thereof).
We make available Mobile Applications to access the website and Services via a mobile device. To use the Mobile Application you must have a mobile device that is compatible with the mobile service. We do not warrant that the Mobile Application will be compatible with your mobile device. We hereby grant to you a non-exclusive, non-transferable, revocable license to use an object code copy of the Mobile Application for one registered account on one mobile device owned or leased solely by you, for your personal use. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Application, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Application to any third-party or use the Mobile Application to provide time sharing or similar services for any third-party; (iii) make any copies of the Mobile Application; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Application, features that prevent or restrict use or copying of any content accessible through the Mobile Application, or features that enforce limitations on use of the Mobile Application; or (v) delete the copyright and other proprietary rights notices on the Mobile Application. You acknowledge that we may from time to time issue upgraded versions of the Mobile Application, and may automatically electronically upgrade the version of the Mobile Application that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that these Terms will apply to all such upgrades. The foregoing license grant is not a sale of the Mobile Application or any copy thereof, and we and our third-party licensors or suppliers retain all right, title, and interest in and to the Mobile Application (and any copy of the Mobile Application). Standard carrier data charges may apply to your use of the Mobile Application.
The following additional terms and conditions apply with respect to any Mobile Application that we provide to you designed for use on an Apple iOS-powered mobile device (an “iOS App”):
- You acknowledge that these Terms are between you and BurnAlong only, and not with Apple, Inc. (“Apple”).
- Your use of our iOS App must comply with Apple’s then-current App Store Terms of Service.
- We, and not Apple, are solely responsible for our iOS App and the Services and content available thereon. You acknowledge that Apple has no obligation to provide maintenance and support services with respect to our iOS App. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to our iOS App.
- You agree that we, and not Apple, are responsible for addressing any claims by you or any third-party relating to our iOS App or your possession and/or use of our iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, and all such claims are governed solely by these Terms and any law applicable to us as provider of the iOS App.
- You agree that we, and not Apple, are responsible, to the extent required by these Terms, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to our iOS App or your possession and use of our iOS App.
- You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
- You agree to comply with all applicable third-party terms of agreement when using our iOS App (e.g., you must not be in violation of your wireless data service terms of agreement when using the iOS App).
- The parties agree that Apple and Apple’s subsidiaries are third-party beneficiaries to these Terms as they relate to your license of our iOS App. Upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as they relate to your license of the iOS App as a third-party beneficiary thereof.
The following additional terms and conditions apply with respect to any Mobile Application that we provide to you designed for use on an Android-powered mobile device (an “Android App”):
- You acknowledge that these Terms are between you and BurnAlong only, and not with Google, Inc. (“Google”).
- Your use of our Android App must comply with Google’s then-current Android Market Terms of Service.
- Google is only a provider of the Android Market where you obtained the Android App. We, and not Google, are solely responsible for our Android App and the Services and content available thereon. Google has no obligation or liability to you with respect to our Android App or these Terms.
- You acknowledge and agree that Google is a third-party beneficiary to the Terms as they relate to our Android App.
The following additional terms and conditions apply with respect to any Mobile Application that we provide to you designed for use on an Android-powered mobile device and obtained from the Amazon App Store (an “Amazon Android App”):
- You acknowledge that these Terms are between you and BurnAlong only, and not with Amazon.com, Inc. (“Amazon”).
USING THIS WEBSITE AND THE WEBSITE’S SERVICES.
We appreciate you visiting our website. You need not register with us to simply visit and view the website and not use any Services on the Site. However, in order to access certain password-restricted areas of the Site, and to use certain Services and access certain Materials offered on and through this Site, you must successfully register an account with us.
PASSWORD RESTRICTED AREAS OF THIS WEBSITE.
If you want an account with us, you must provide a working email address and preferred password through the account registration page on this website. You may also provide additional, optional information so that we can provide you a more customized experience when using the Site –but, we will leave that decision with you. Once you submit the required registration information, we alone will determine whether or not to approve your proposed account. If approved, you will be permitted to log in to your account with your password.
We may also provide you with the ability to register for an account using your existing account and log-in credentials from third-party sites and services such as FaceBook. By using such third-party account and/or credentials you are consenting to our retention and use, and such third-party site’s disclosure, of the account, credentials and other populated profile information that you submit.
For so long as you use your BurnAlong account, you agree to provide true, accurate, current, and complete information which can be accomplished by logging into your account and making relevant changes directly. And, if you forget your password – no worries as we will happily send a password update to your provided email address.
You are responsible for complying with these Terms when you access the Site, whether directly or through any account that you may setup through or on the Site. Because it is your account, it is your job to obtain and maintain all equipment and services needed for access to and use of the Site as well as paying related charges. It is also your responsibility to maintain the confidentiality of your password(s), including any password of a third-party site that we may allow you to use to access the Site. Should you believe your password or security for the Site has been breached in any way, you must immediately notify us.
You agree to pay all applicable fees related to your use of the Site or any part of the Site. We may suspend or terminate your account and/or access to our Services and this website if your payment is late and/or your offered payment method (e.g., credit card, PayPal account, etc.) cannot be processed. By providing a payment method, you expressly authorize us to charge the applicable fees on said payment method as well as taxes and other charges incurred thereto at regular intervals, all of which depend on your particular membership and utilized services.
If you sign up for a paid subscription to use our Service (“Subscription”), we will charge your credit card for your first fee on the date that we process the order for your Subscription.
IMPORTANT NOTICE: Unless you cancel prior to the expiration of your current Subscription, we will automatically renew your Subscription on each monthly or yearly (depending on the Subscription you have chosen) anniversary of the date that we charged your credit card for the first Subscription fee. If you sign up for a Subscription that includes a free-trial period, unless you have cancelled your membership prior to the expiration of the free-trial period, as authorized by you during the memberships sign-up process, we will automatically charge you for the first monthly or yearly membership fee upon the expiration of the free-trial period and each subsequent membership fee on the anniversary of the date of the first billing. We will charge your credit card with the applicable renewal Subscription fee and any Taxes (as defined below) that may be imposed on such fee payments. Subscriptions must be canceled prior to the applicable renewal date.
You may cancel your Subscription directly through your account on the site; provided that any Subscription fees charged prior to the effective date of cancellation will not be refunded, in whole or in part.
All fees are exclusive of any applicable sales, use, import or export taxes, duties, fees, value-added taxes, tariffs or other amounts attributable to your use of the Site (collectively, “Taxes”). You are solely responsible for the payment of any such Taxes. In the event we are required to pay Taxes on your behalf, you shall promptly reimburse us for all amounts paid.
We understand that you might cancel your account, but please know that we will not provide any refund(s) and you will be responsible for paying any balance due on the account. To make things less complicated, you agree that we may charge any unpaid fees to your provided payment method and/or send you a bill for such unpaid fees.
By using the Site or any part of the Site, you consent to receiving electronic communications from us. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Site provided on or through the Site. These electronic communications are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.
LINKS TO THIRD-PARTY SITES.
We think links are convenient, and we sometimes provide links from the Site to third-party websites. If you use these links, you will leave our Site. We are not obligated to review any third-party websites linked to from this Site, we do not control any of the third-party websites, and we are not responsible for any of the third-party websites (or the products, services, or content available through any of them). Thus, we do not endorse or make any representations about such third-party websites, any information, software, products, services, or materials found there or any results that may be obtained from using them. If you decide to access any of the third-party websites linked to from this Site, you do this entirely at your own risk and you must follow the privacy policies and terms and conditions for those third-party websites. Certain areas of the Site may allow you to interact and/or conduct transactions with one or more third-party websites or services, and, if applicable, allow you to configure your privacy settings in that third-party account to permit your activities on this Site to be shared with your contacts in your third-party site account.
Certain areas of the Site may permit you to submit feedback, information, data, text, images, messages, or other materials (each, a “User Submission”). You agree that you are solely responsible for all of your User Submissions and that any such User Submission is considered both non-confidential and non-proprietary. Further, we do not guarantee that you will be able to edit or delete any User Submission you have submitted.
By submitting any User Submission, you are promising us that:
- You own all rights in your User Submissions (including, without limitation, all rights to the reproduction and display of your User Submissions) or, alternatively, you have acquired all necessary rights in your User Submissions to enable you to grant to us the rights in your User Submissions as described in these Terms;
- You have paid and will pay in full all license fees, clearance fees, and other financial obligations, of any kind, arising from any use or commercial exploitation of your User Submissions;
- Your User Submissions do not infringe the copyright, trademark, patent, trade secret, or other intellectual property rights, privacy rights, or any other legal or moral rights of any third party;
- You voluntarily agree to waive all “moral rights” that you may have in your User Submission;
- Any information contained in your User Submission is not known by you to be false, inaccurate, or misleading;
- Your User Submission does not violate any law (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination, or false advertising);
- Your User Submission is not, and may not reasonably be considered to be, defamatory, libelous, hateful, racially, ethnically, religiously, or otherwise biased or offensive, unlawfully threatening, or unlawfully harassing to any individual, partnership, or corporation, vulgar, pornographic, obscene, or invasive of another’s privacy;
- You were not and will not be compensated or granted any consideration by any third party for submitting your User Submission;
- Your User Submission does not incorporate materials from a third-party website, or addresses, email addresses, contact information, or phone numbers (other than your own or otherwise have the right to provide);
- Your User Submission does not contain any viruses, worms, spyware, adware, or other potentially damaging programs or files;
- Your User Submission does not contain any information that you consider confidential, proprietary, or personal; and
- Your User Submission does not contain or constitute any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation.
By submitting a User Submission, you grant to us an irrevocable, perpetual, transferable, non-exclusive, fully-paid, worldwide, royalty-free license (sublicensable through multiple tiers) to:
- Use, distribute, reproduce, modify, adapt, publish, translate, publicly perform, and publicly display your User Submissions (or any modification thereto), in whole or in part, in any format or medium now known or later developed;
- Use (and permit others to use) your User Submission in any manner and for any purpose (including, without limitation, commercial purposes) that we deem appropriate in our sole discretion (including, without limitation, to incorporate your User Submission or any modification thereto, in whole or in part, into any technology, product, or service);
- Display advertisements in connection with your User Submissions and to use your User Submissions for advertising and promotional purposes.
We may, but are not obligated to, pre-screen User Submissions or monitor any area of Site through which User Submissions may be submitted. We are not required to host, display, or distribute any User Submissions on or through the Site and may remove at any time or refuse any User Submissions for any reason. You understand that when using the Site you will be exposed to User Submissions from a variety of sources and that we are not responsible for the accuracy, usefulness, reliability or intellectual property rights of or relating to such User Submissions. You further understand and acknowledge that you may be exposed to User Submissions that are inaccurate, offensive, defamatory, indecent or objectionable and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against us with respect thereto. We are not responsible for any loss, theft, or damage of any kind to any User Submissions. Further, you agree that we may freely disclose your User Submission to any third party absent any obligation of confidence on the part of the recipient.
To be clear, we authorize your use of the Site only for Permitted Purposes. Any other use of the Site beyond the Permitted Purposes is prohibited and, therefore, constitutes unauthorized use of the Site. This is because as between you and us, all rights in the Site remain our property.
Unauthorized use of this Site may result in violation of various United States and international copyright laws. Because we prefer keeping this relationship drama-free, we want to give you examples of things to avoid. So, unless you have written permission from us stating otherwise, you are not authorized to use this Site in any of the following ways (these are examples only and the list below is not a complete list of everything that you are not permitted to do):
- In a manner that modifies, publicly displays, publicly performs, reproduces or distributes any of this Site for any commercial purpose that competes with our Services in any way;
- In a manner that modifies, publicly displays, publicly performs, reproduces or distributes any of this Site;
- In a manner that violates any local, state, national, foreign, or international statute, regulation, rule, order, treaty, or other law;
- To stalk, harass, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) another individual;
- To impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity;
- To interfere with or disrupt this Site or servers or networks connected to this Site;
- To collect information about other users of the Site;
- To use any data mining, robots, or similar data gathering or extraction methods in connection with this Site; or
- Attempt to gain unauthorized access to any portion of this Site or any other accounts, computer systems, or networks connected to this Site, whether through hacking, password mining, or any other means.
You agree to hire attorneys to defend us if you violate these Terms and that violation results in a problem for us. You also agree to pay any damages that we may end up having to pay as a result of your violation. You alone are responsible for any violation of these Terms by you. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and, in such case, you agree to cooperate with our defense of such claim.
The Site includes registered and unregistered trademarks that belong to us. Other trademarks, names and logos on this Site are the property of their respective owners.
Unless otherwise specified in these Terms, all Materials, including the arrangement of them on the Site are our sole property or the property of our licensors. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner.
INTELLECTUAL PROPERTY INFRINGEMENT / DMCA POLICY.
We respect the intellectual property rights of others and encourage you to do the same. Accordingly, we have a policy of removing User Submissions that violate intellectual property rights of others, suspending access to this Site (or any portion thereof) to any user who uses this Site in violation of someone’s intellectual property rights, and/or terminating in appropriate circumstances the account of any user who uses the this Site in violation of someone’s intellectual property rights.
Pursuant to Title 17 of the United States Code, Section 512, we have implemented procedures for receiving written notification of claimed copyright infringement and for processing such claims in accordance with such law. If you believe your copyright or other intellectual property right is being infringed by a user of this Site, please provide written notice to our agent for notice of claims of infringement:
IP Infringement Management
PO BOX 32583
Pikesville, MD 21282
To be sure the matter is handled immediately, your written notice must:
- Contain your physical or electronic signature;
- Identify the copyrighted work or other intellectual property alleged to have been infringed;
- Identify the allegedly infringing material in a sufficiently precise manner to allow us to locate that material;
- Contain adequate information by which we can contact you (including postal address, telephone number, and e-mail address);
- Contain a statement that you have a good faith belief that use of the copyrighted material or other intellectual property is not authorized by the owner, the owner’s agent or the law;
- Contain a statement that the information in the written notice is accurate; and
- Contain statement, under penalty of perjury, that you are authorized to act on behalf of the copyright or other intellectual property right owner.
Unless the notice pertains to copyright or other intellectual property infringement, the Agent will be unable to address the listed concern.
Submitting a Digital Millennium Copyright Act (“DMCA”) Counter-Notification
We will notify you that we have removed or disabled access to copyright-protected material that you provided, if such removal is pursuant to a validly received DMCA take-down notice. In response, you may provide our Agent with a written counter-notification that includes the following information:
- Your physical or electronic signature;
- Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
- A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
- Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which we may be located, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.
Termination of Repeat Infringers
We reserve the right, in our sole discretion, to terminate the account or access of any user of the Site who is the subject of repeated DMCA or other infringement notifications.
DISCLAIMER OF WARRANTIES.
YOUR USE OF THE SITE AND ANY MATERIALS YOU MAY ACCESS AND USE THROUGH YOUR USE OF THE SITE IS AT YOUR OWN RISK. THE MATERIALS HAVE NOT BEEN VERIFIED OR AUTHENTICATED IN WHOLE OR IN PART BY BURNALONG, AND THEY MAY INCLUDE INACCURACIES OR OTHER ERRORS. WE DO NOT WARRANT AND EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES ABOUT THE ACCURACY, INTEGRITY, EFFICACY OR APPROPRIATENESS OF THE MATERIALS OBTAINED THROUGH YOUR USE OF THE SITE. WE ASSUME NO LIABILITY FOR ANY ERRORS, INNACURACIES OR OMISSIONS IN THE MATERIALS, WHETHER PROVIDED BY BURNALONG, OUR LICENSORS OR SUPPLIERS, OR BY OTHER USERS. YOU AGREE THAT YOU MUST EVALUATE, MAKE YOUR OWN JUDGMENT, AND BEAR ALL RISKS ASSOCIATED WITH THE USE OF ANY MATERIALS. UNDER NO CIRCUMSTANCES WILL BURNALONG BE LIABLE IN ANY WAY FOR ANY MATERIALS OR USER SUBMISSIONS INCLUDING, BUT NOT LIMITED TO, THE SOLICITATION AND POSTING OF ANY MATERIALS, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY MATERIALS.
THIS SITE AND ALL MATERIALS ARE PROVIDED “AS IS” AND “WITH ALL FAULTS” AND THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THIS SITE IS WITH YOU. WE, ON BEHALF OF OURSELVES AND OUR LICENSORS, EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND (EXPRESS, IMPLIED OR STATUTORY) WITH RESPECT TO THIS SITE, WHICH INCLUDES BUT IS NOT LIMITED TO, ANY IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
LIMITATION OF LIABILITY.
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER BURNALONG NOR OUR LICENSORS SHALL BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF, OR RESULTING FROM, (A) THE USE OR THE INABILITY TO USE THE MOBILE APPLICATION, SERVICES, WEBSITE OR ANY OTHER COMPONENT OF THE SITE; (B) THE USE OF ANY MATERIAL ACCESSIBLE ON OR THROUGH THE SITE OR ANY WEBSITES LINKED TO SITE; (C) STATEMENTS, SERVICES OR CONDUCT OF ANY THIRD PARTY; OR (D) ANY OTHER MATTER RELATING TO THE SITE OR ANY COMPONENT THEREOF. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ANY AND ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT – INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE – OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU TO BURNALONG.
BY USING THE SITE, YOU EXPRESSLY AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BURNALONG SHALL NOT BE LIABLE IN ANY WAY FOR ANY HARM ARISING OUT OF OR RELATING TO YOUR USE THE SITE OR ANY MATERIALS OBTAINED THROUGH YOUR USE OF THE SITE, INCLUDING WITHOUT LIMITATION, BODILY INJURY, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES RESULTING FROM YOUR USE OF ANY THIRD PARTY INFORMATION, PROGRAM OR SUGGESTION. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL INTERACTIONS WITH THIRD PARTIES, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON.
LOCAL LAWS; EXPORT CONTROL.
We control and operate this Site from our headquarters in the United States of America and the entirety of this Site may not be appropriate or available for use in other locations. If you use this Site outside the United States of America, you are solely responsible for following applicable local laws. We may limit the availability of the Site, in whole or in part, to any person, geographic area or jurisdiction we choose, at any time. Not all products or services described on the Site may be available in all states or territories.
Any submissions by you to us (e.g., comments, questions, suggestions, materials – collectively, “Feedback”) through any communication whatsoever (e.g., call, fax, email) will be treated as both non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and we are free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that we are not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
DISPUTE RESOLUTION AND ARBITRATION; CLASS ACTION WAIVER.
Please Read This Provision Carefully. It Affects Your Legal Rights.
This “Dispute Resolution and Arbitration; Class Action Waiver” provision (“Provision”) facilitates the prompt and efficient resolution of any dispute (e.g., claim or controversy, whether based in contract, statute, regulation, ordinance, tort – including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence – or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below) that may arise between you and BurnAlong. Effectively, then, “dispute” is given the broadest meaning enforceable by law and includes any claims against other parties relating to services or products provided or billed to you (such as our licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding.
This Provision provides that all disputes between you and us shall be resolved by binding arbitration because acceptance of these Terms constitutes a waiver of your right to litigation claims and all opportunity to be heard by a judge or jury. We prefer this because we believe arbitration is less drama-filled than litigation. To be clear, there is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney’s fees). You may, however, opt-out of this Provision which means you would have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). BOTH YOU AND BURNALONG AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution
For all Disputes, whether pursued in court or arbitration, you must first give us an opportunity to resolve the Dispute which is first done by emailing to us at email@example.com the following information: (1) your name, (2) your address, (3) A written description of your Claim, and (4) A description of the specific relief you seek. If we do not resolve the Dispute within 45 days after receiving your notification, then you may pursue your Dispute in arbitration. You may pursue your dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt Out
Notwithstanding the above, you or we may choose to pursue a Dispute in court and not by arbitration if: (a) The dispute qualifies for initiation in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt-out of this Provision by emailing us at firstname.lastname@example.org the following information: (1) your name; (2) your address; (3) A clear statement that you do not wish to resolve disputes with us through arbitration. Either way, we will not take any decision you make personally. In fact, we promise that your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with us. But, we do have to enforce the Opt-Out Deadline so keep in mind that any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your dispute in arbitration or small claims court.
If this Provision applies and the dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or we may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration.
Because the Site and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration – You or we may initiate arbitration in either Pikesville, MD or the federal judicial district that includes your billing address. In the event that you select the latter, we may transfer the arbitration to Pikesville so long as we agree to pay any additional fees or costs which the arbitrator determines you incur as a result of the transfer.
Payment of Arbitration Fees and Costs – So long as you place a request in writing prior to commencement of the arbitration, we will pay all arbitration fees and associated costs and expenses. But, you will still be responsible for all additional fees and costs that you incur in the arbitration which include but are not limited to attorneys’ fees or expert witnesses. In addition to any fees and costs recoverable under applicable law, if you provide notice and negotiate in good faith with us as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
Class Action Waiver
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and we specifically agree to do so following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of the Site can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
You understand and agree that by accepting this Provision in these Terms, you and BurnAlong are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and BurnAlong might otherwise have had a right or opportunity to bring disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court (e.g., the rights to both appeal and certain types of discovery) may be more limited or may also be waived.
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision whose remainder will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the dispute will be decided by a court.
This Provision shall survive the termination of your account with us and your discontinued use of the Site. Notwithstanding any provision in this Agreement to the contrary, we agree that if we make any change to this Provision (other than a change to the Notice Address), you may reject any such change and require us to adhere to the language in this Provision if a dispute between us arises.
We think direct communication resolves most issues – if we feel that you are not complying with these Terms, we will tell you. We will even provide you with recommended necessary corrective action(s) because we value this relationship.
However, certain violations of these Terms, as determined by us, may require immediate termination of your access to the Site without prior notice to you. The Federal Arbitration Act, Maryland state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. Foreign laws do not apply. Except for disputes subject to arbitration as described above, any disputes relating to these Terms or the Site will be heard in the courts located in Baltimore County, MD. If any of these Terms are deemed inconsistent with applicable law, then such term(s) shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. By choosing not to enforce any of these Terms, we are not waiving our rights. These Terms are the entire agreement between you and us and, therefore, supersede all prior or contemporaneous negotiations, discussions or agreements between you and BurnAlong about the Site. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.
If you have any questions about these Terms or otherwise need to contact us for any reason, you can reach us by email at CustomerCare@burnalong.com, or by mail at BurnAlong, Inc., PO BOX 32583, Pikesville, MD 21282.